Ethics and the Courts

As I read Howard Zonana's article in the last issue of the AAPL Newsletter (When Ethics and Law Clash 9/2009 34:1) in which he reviewed a NC Supreme Court opinion which seems to override the AMA Code of Ethics in a case addressing physician involvement in executions I found my indignation rising at the thought that any court might presume to proffer judgments regarding the ethics of a profession. Is that not the sole province of the relevant professional association?

Then I recalled that psychologists have often cited the American Psychological Association's Code of Ethics in refusing to provide what they call "raw data" from psychological tests to psychiatric expert witnesses whom they deem unqualified to interpret the results. I believe psychologists' use of this ploy to gain an upper hand in litigation has no real ethical validity, particularly in view of the fact that the Code (below) states only that the psychologist "may refrain" from releasing data. I have occasionally found myself hoping a judge would overrule psychologists and order release of the so-called raw data along with the rest of the records. (It is also noteworthy that the psychologists' ethics code provides for situations where the code conflicts with law.)

Although I cannot have my cake and eat it too, perhaps there is a distinction here. Participation in an execution involves actual professional practice. The court should not be able to force a physician (or a psychologist) to work against his will, regardless of the reasons. Of course the professional does have the option of resigning or waiting to be fired.

In the case of record release (including raw data), however, no real work is involved, and both case law and statutes, including HIPAA, would seem to support the principle that the patient or subject, not the professional, owns the right to determine what happens to the records .

From the American Psychological Association Ethics Code (accessed 11.18.2009):

"1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority
If psychologists' ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.

9.04 Release of Test Data
(a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, Maintaining Test Security.)
(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order."